Breazeale v. State

683 S.W.2d 446, 1985 Tex. Crim. App. LEXIS 1206

• Court: Court of Criminal Appeals of Texas
• Decided: January 23, 1985
• Docket: 387-83, 604-83
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

Appellant Wallace Neil Higgs, Jr. pled guilty to possession of lysergic acid diethyl-amide, a controlled substance. The court found appellant guilty and sentenced him to ten years’ confinement.

Appellant Thomas Ray Breazeale pled not guilty and was tried before the court for the felony offense of forgery. The court found appellant guilty, found the enhancement allegations contained in the indictment to be true, and sentenced him to life imprisonment. V.T.C.A., Penal Code, § 12.42(d) prior to the 1982 Amendment.

Both cases were reversed by the court of appeals, 655 S.W.2d 230, for the fourteenth supreme judicial district, on the ground that Art. 1.13, V.A.C.C.P. was not complied with because no written waiver of jury trial signed by the appellant appeared in the record.

We granted the State’s petition for discretionary review in both cases to address the issue of whether a felony judgment that recites that the appellant waived his right to trial by jury is sufficient where the record does not contain such a waiver.

The State argues that the presumption of regularity based upon recitals in the judgment should control the waiver of the right to trial by jury, and that no other evidence need be included. The State points out that prior case law has applied the presumption on the issue of jury waiver. Harvey v. State, 485 S.W.2d 907, 908, (Tex.Cr.App.1972); Graham v. State, 138 Tex.Cr.R. 449, 136 S.W.2d 830 (1940); Waldrop v. State, 129 Tex.Cr.R. 134, 83 S.W.2d 974 (1935). However, these cases were tried under Art. 10a of the Code of Criminal Procedure of 1925. Art. 10a is the predecessor to the current Art. 1.13, V.A.C.C.P., but there are some critical differences between the two. Art. 10a provided:

‘The defendant in a Criminal prosecution for any offense classified as a felony less than a capital offense, shall have the right, upon entering a plea of guilty, to waive the right of a trial by a Jury, conditioned, however, that such waiver must be made in person by the defendant in open Court with the consent and approval of the Court and the duly elected and acting Attorney representing the State. Provided, that said consent and approvals by the Court shall be entered of record on the Minutes of the Court and the consent and approval of the Attorney representing the State shall be in writing, duly signed by said Attorney and filed in the papers of the Cause before the defendant enters his plea of guilty.

‘Provided, that before a defendant who has no Attorney can agree to waive a Jury, the Court must appoint an Attorney to represent him.’

Art. 1.13 as amended in 1959 and 1965 reads:

The defendant in a criminal prosecution for any offense classified as a felony less than capital shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State. The consent and approval by the court shall be entered of record on the minutes of the court, and the consent and approval of the attorney representing the State shall be in writing, signed by him, and filed in the papers of the cause before the defendant enters his plea. Before a defendant who has no attorney can agree to waive the jury, the court must appoint an attorney to represent him.

Acts 1965, 59th Leg. vol. 2, p. 317, ch. 722.

The present article, Art. 1.13 commands that a waiver be made in person by the defendant and signed by him. Ex Parte Felton, 590 S.W.2d 471 (Tex.Cr.App.1979). Art. 10a did not require any writing by the defendant.

The State also cites several recent cases holding that where prior convictions offered into evidence or prior convictions used for enhancement contain only a recital in the judgmént alleging waiver of jury trial, the presumption of regularity applies and no written waiver need be included. Williams v. State, 605 S.W.2d 596 (Tex.Cr.App.1980); Berry v. State, 582 S.W.2d 463 (Tex.Cr.App.1979); McCoy v. State, 529 S.W.2d 538 (Tex.Cr.App.1975). These cases rely on old case law decided under Art. 10a or on cases dealing with the right to counsel. Neither of these cases is convincing. No mandatory statute cognate to Art. 1.13 requires written waiver of the right to counsel.

Art. 10a did not require written waiver by the defendant, but only by the State. Since the right to jury trial in criminal cases is fundamental to our system of justice and is and has always been intended primarily for the protection of the accused, the focus of the right is upon the defendant. The Legislature made this idea very clear when they replaced Art. 10a with Art. 1.13 and required written waiver by the defendant himself.

Boyd v. State, 660 S.W.2d 820 (1983) controls this case. In Boyd we held that the defendant’s motion to quash the enhancement portion of the indictment due to the absence of a jury waiver should have been granted. We held that one purpose of Art. 1.13 is to protect a defendant by expressly conditioning a waiver of the right to jury trial on the requirements that it be in person, in writing, and in open court.

We hold that the presumption of regularity does not apply to waiver of jury trial in the light of the express dictates of Art. 1.13;¹ to hold otherwise would be to render nugatory the protection of the defendant’s right to jury trial which is the purpose of Art. 1.13. In order to show a valid waiver the State must comply with Art. 1.13 and include in the record a waiver of jury trial signed by the defendant. All cases to the contrary are overruled insofar as they apply to trials conducted since the effective date of the adoption of Art. 1.13.

The judgments of the court of appeals reversing the judgments of the trial courts are affirmed.

CAMPBELL, J., concurs in the result. McCORMICK, J., dissents.

1 . Because the statutory scheme requires the result reached, we need not discuss — and do not endorse — the court of appeals’ holding in these two cases that the rule of review presuming the regularity of judgments “does not apply to fundamental, constitutionally protected rights such as the right to trial by jury.”